Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1887-02-13
WITHOUT A JURY.
A PRISONER SENT 10 rHr pEErrEu.
rmay UPON wsIvsRoe THIS RIGHT.
shculd Be he Reid BY the saperin-
tensent7-opiuion OF the
Attorney General.


each prisoner, found that 1t appeared
that the man had been convicted with
ont jury. Thereupon he laid the facts
before the Governor, who asked the
opinion Of the Attorney-General, and
tlc latter has answered as follows:
COMMONWEALTH or VIRGINIA.,
ATTORNEY GENERALS OFFICE,
RIoumoND, February 10, 1887.
HIS ErccUcncg, FitzhUgh Ice, Esq,
Governor OF Virginia:
Sir,--I have the honor to acknowledge
the receipt of your communication OF
the 9Th instant, covering letter re-
ceiyed from the Superintendent OF the
Tonitentiary, with other correspond
epce in relation to a recent conviction
for felony in the Corporation Court for
the city of Roanoke, in which the
Court, without Intervention of jury
upon the plea of guilty, sentenced the
prisoner, 7. w Bowie, TO confinement
in the penitertiary for the term OF two
years.
am clearly Of the opinion that the
ascertainment of the term of imprison-
mcnt hy the court was Illegal and with
out authority of law. By section % OF
chapter 10 of the Criminal Code, Acts
of iS77 and 1875, it is provided that
"the term of confinement in the penn
tertiary or IN jul of a person convicted
of felony, where that punishment is
prescribed. shall be asccrtaipcd by the
iury.r This right TO have the jury as
certain the term OF imprisonment can
not be waived The Supreme Court OF
Appeals of Virginia in the case OF Mays
gS. The Commonwealth, decided at the
last term and reported IN the February
No. Of the Virginia Lar J0u1'al, page
IS. held that in a prosecution for mis-
demeanor (selling liquor to a minor
fhe accused could not waive his righttO
n trial by a jury. The court reversed
The Judgment of the Hastings Court OF
the city of Lynchburg, although the
accused and the attorney for the Com
monwealth had by agreement submitted
al the questions of law and fact to the
decision of the court. This beng the
rule in misdemoanOr cases, 1t applies
with much more force i'll the trial OF
felonies, where the consequences OF
conviction subject the prisoner to an
infamous punishment 10y confinement
In the penitentiary.
Consent of the accused cannot there
fore in any case confer jurisdiction upon
the Court TO ascertain the term OF I'M
prisonment of person convicted OF
felony.
Whilst it is clear that the conviction
was illegal it is by no means equally
clear what the duty OF the Superintend-
ent is in regard to receiving a prisoner
into the penitentiary upon record
showing such illegal conviction.
Whether he should so far transcend
the limits of his duty as on executive
or ministerial officer as to exercise the
judicial function of determining the
purely legal question involved in the
erroneous conviction, and refuse to re-
ceive the prisoner is the point sub
mitted. The prisoner has been sem
fenced to the penitentiary for the short
est period prescribed by law for the
offence communicative, two years for
forgery. He may choose TO undergo
this Imprisonment rather than take the
chances of being sentenced for longer
term upon the conviction of jury,
should a new trial be had. If the Su-
perintendent may decide this question,
Why may nc not assume to decide every
question of error involved in record
certified TO him, and either refuse or re-
ceive the convict as he may he OF oplh-
ion the conviction was proper or erro-
neous?
From the best considerations have
been able to give the subject, amid the
press of official engagements, / am
forced to the conclusion that the Su-
perintendent of the Penitentiary cannot
look into the record further than to as
certain that the prisoner has been SEN
fenced to the peDitentiary bya court OF
competent jurisdiction to try him upon
the charge preferred. Whether the
court upon this trial has committed
errors for which the judgment should
be set aside or reversed upon hade0s
corpus or writ of error is a matter en-
tirely beyond the scope of his duty rs
an executive or ministerial officer, and
belongs alone to the Judicial depart
ment of the government.
Very respectfully,
X. A. AYERS, Attorney-General.
A BRIEF HISTORY OF BowE's CRIME.
A special telegram to the Dispatch
from Roanoke says:
II. w. Bowie came to Roanoke last
October, and worked for a short time III
the Leader printing-office as a compost,
tor. His habits were not regular, and
having received a check for work done
from A. b. Hammond, business manager
of the Leader, he inflated the signature
and conceived the idea of paying bar
room bill of $3.50 TOD. Il. Scrothby,
forging fhe name of Mr.. Hammond tos
check on the First National Bank fol
the above amount. He was arrested
and taken before Justice Turner
who sent him on to await the action o.
the grand jury at the january term o.
the Hustings Court. He was indicted
for forgery, and waving trial by
jury and pleading guilty, he was sen
fenced by Judge w. g. Robertson t.
two years in the penitentiary. He wa
taken to Richmond on the 18th o
January by Deputy-Sheriff Traynharl
and delivered to the Superintendent o
the Penitentiary. He seemed anxious
to be convicted, ard said he preferred
confinement in the penitentiary to thu
Jail. Nothing is known here of hi
previous history. lie was regarded "a
tramp printer.
A SIMILAR CASE.
Bowie hns Us yet made no movement
To secure his release from imprison
ment but convict named j. G. John
son atlas Smith, sentenced by Judg
Latham, of Lynchburg, under simlll
circumstances, has written to the Jude;
about his own case.
A Pretty waltz.
The Winnie Davis Waltz, compose